Citation Nr: 0813152
Decision Date: 04/21/08 Archive Date: 05/01/08
DOCKET NO. 05-35 882 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUE
Entitlement to service connection for a cervical spine
disorder, to include as secondary to service-connected
residuals of sacroiliac injury.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
Siobhan Brogdon, Counsel
INTRODUCTION
The veteran served on active duty from July 1943 to December
1945.
This matter comes before the Department of Veterans Affairs
(VA) Board of Veterans' Appeals (Board) on appeal from a May
2005 rating decision of the VA Regional Office (RO) in
Detroit, Michigan that denied service connection for a
cervical spine disorder.
The Board granted a motion in October 2006 to advance this
case on the docket due to the veteran's age.
The Board denied the veteran's claim in November 2006.
Thereafter, the appellant filed an appeal to the United
States Court of Appeals for Veterans Claims (Court). The
veteran's representative and VA's General Counsel filed a
joint motion to vacate the Board's 2006 decision. By Order
dated in February 2008, the Court granted the joint motion
and remanded the case to the Board for further consideration
and readjudication.
In correspondence dated and received in January 2007, the
veteran requests an increased rating for service-connected
residuals of sacroiliac injury. This matter is not properly
before the Board for appellate review at this time and is
referred to the RO for appropriate consideration.
Following review of the record, the appeal is REMANDED to the
RO via the Appeals Management Center (AMC) in Washington, DC.
VA will notify the appellant if further action is required.
REMAND
The veteran asserts that he now has disability of the
cervical spine that is the result of injury in service, or is
causally related to service-connected residuals of sacroiliac
injury. The record discloses that he was afforded an
examination in March 2005 by a VA nurse practitioner who
essentially found that the issue could not be resolved
without resorting to speculation. The veteran's private
physician, J. L. S., D.O, submitted statements received
and/or dated in February 2005 and September 2006,
respectively, attributing cervical spine disability to an
airplane accident in 1945 in service.
In the February 2008 joint motion, the parties sought to
vacate the Board's November 2006 decision on the basis that
it did not provide an adequate statement of reasons and bases
to enable the claimant to understand why the claim had been
denied, given the favorable evidence received from the
appellant's private physician.
Essentially, it was pointed out that the VA clinician who
conducted the VA examination in 2005 was a nurse
practitioner, and not a physician as the Board stated in its
decision, and that the opinion provided at that time was
given greater weight in denying the claim. It was explained
that it was not clear if the Board would have placed as much
probative weight on the VA's 2005 opinion had it been
cognizant that it was relying on the opinion of a nurse
practitioner, and not to a physician. It was thus agreed by
the parties that the statement of reasons and bases was
deficient, and that the Board erred in its reasons and bases
by not discussing whether the probative value that it
assigned to the 2005 examination was contingent on whether
the examiner was a physician, as opposed a nurse
practitioner, in addition to repeatedly misconstruing the
evidence itself.
The Court stated that on remand, VA was obligated to conduct
a critical examination of the justification for its decision
and set forth adequate reasons and bases for its findings and
conclusions on all material issues of fact and law presented
on the record, as well as comply with all provisions of the
Veterans Claims Assistance Act of 2000 (VCAA).
Under the circumstances, the Board finds that a special
examination by a VA orthopedist is warranted for a more
definitive and clarifying opinion to ascertain whether or not
the veteran currently has cervical spine disability as the
result of injury in service, or whether it is related to
service-connected disability.
The fulfillment of the VA's statutory duty to assist includes
affording a VA examination by a specialist when indicated,
conducting a thorough and contemporaneous medical
examination, and providing a medical opinion, which takes
into account the records of prior medical treatment, so that
the disability evaluation will be a fully informed one. See
Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v.
Derwinski, 1 Vet. App. 121, 124 (1991).
Accordingly, the case is REMANDED for the following actions:
1. The RO must review the claims
file and insure that all
notification and development
actions required by 38 U.S.C.A.
§§ 5102, 5103, and 5103A (West
2002 & Supp. 2007), the
implementing regulations found at
38 C.F.R. § 3.159 (2007), and any
other legal precedent are fully
complied with and satisfied. See
also Quartuccio v. Principi,
16 Vet. App. 183 (2002). Proper
notice from VA must inform the
claimant of any information and
evidence not of record (1) that is
necessary to substantiate the
claim; (2) that VA will seek to
provide; (3) that the claimant is
expected to provide; and (4) must
ask the claimant to provide any
evidence in her or his possession
that pertains to the claim in
accordance with 38 C.F.R.
§ 3.159(b)(1). He should also be
notified regarding the criteria
for rating a disability or
establishing an effective date
should service connection be
granted. See Dingess v. Nicholson,
19 Vet. App. 473 (2006).
2. The veteran should be
scheduled for a spine examination
by a VA orthopedist. All
indicated tests and studies should
be performed, and clinical
findings should be reported in
detail and correlated to a
specific diagnosis. The claims
file and a copy of this remand
should be made available to the
physician designated to examine
the appellant. In a narrative
format, a comprehensive clinical
history should be obtained. The
examination report should include
a discussion of the veteran's
documented medical history and
assertions. Based on a thorough
review of the evidence of record,
the examiner should provide
opinions, with complete supporting
rationale, as to whether it is at
least as likely as not (50 percent
probability or better) that the
veteran now has a cervical spine
disorder a) dating from an injury
in service; b) secondary to
service-connected residuals of
sacroiliac injury; and/or c)
whether the cervical spine
disorder has been made chronically
worse by the service-connected
residuals of sacroiliac injury.
If aggravation is found, the
examiner should offer an
assessment of the extent of
additional disability of the
cervical spine resulting from
aggravation by the low back
disorder.
In formulating the medical
opinion, the examiner is asked to
consider that the term "at least
as likely as not" does not mean
within the realm of possibility,
rather that the weight of the
medical evidence both for and
against the conclusion is so
evenly divided that it is as
medically sound to find in favor
of causation as it is to find
against causation.
3. The veteran must be given
adequate notice of the
examination, to include advising
him of the consequences of failure
to report under 38 C.F.R. § 3.655
(2007). A copy of the examination
notification should be associated
with the claims folder. Failure
to appear for examination should
be noted in the file.
4. The RO should ensure that the
medical report requested above
complies with this remand,
especially with respect to the
instructions to provide a competent
medical opinion. If the report is
insufficient, or if the requested
action is not taken or is
deficient, it should be returned to
the examiner for correction. See
Stegall v. West, 11 Vet. App. 268
(1998).
5. After taking any further
development deemed appropriate,
the RO should re-adjudicate the
issue on appeal. If the benefit
is not granted, the veteran and
his representative should be
furnished a supplemental statement
of the case and be afforded an
opportunity to respond before the
record is returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).